The Braille Monitor _______ December 1997
The Blind Lawyer
Shaping Policy for the Nation's Power Companies
by Bruce Gardner
From the Editor: Bruce Gardner is the President of the National Federation of the Blind of Arizona. At the 1997 convention he was elected to a seat on the NFB Board of Directors. This is what he said:
I am a senior attorney with Arizona Public Service Company (APS), a major corporation in Arizona. I am one of ten attorneys who serve as in-house counsel for the company. APS is not a municipality or government agency; it is a publicly-held corporation and the largest electric utility company in Arizona. So what do I do as a senior attorney with a major corporation? I practice law, of course. But if all you know about attorneys and the practice of law is what you have learned watching Perry Mason reruns or the O.J. Simpson trials, you won't know what I mean when I say, "I practice law."
Just as most physicians are not surgeons, most lawyers are not litigators. In fact, it has been years since I have jumped to my feet in righteous indignation and shouted, "Objection, your Honor, that's hearsay." If most of us lawyers are not litigators, then what do we do? As I said, we practice law. What does it mean to practice law? We were told in law school that it means to think like a lawyer. I recall the dean of the law school telling all of us first-year law students that we would be required to take classes in many legal subjects such as contracts, torts, civil procedure, criminal procedure, Constitutional law, criminal law, evidence, tax, etc., and that we would, of course, be required to learn the laws in each of these subjects and develop skills in legal research, legal writing, oral advocacy, and other procedural aspects of practicing law. But he said the fundamental purpose--the real purpose--of going to law school was to teach us to think like lawyers.
An incident that happened to me early in law school should illustrate the three aspects of legal training: learning laws, developing skills, and, most important, beginning to think like a lawyer. In the first year of law school, we were required to take the criminal law class. The criminal law professor had served for over twenty-five years as a renowned criminal prosecutor in southern California. In his class, when he called on you, you were required to stand and attempt to answer his barrage of questions while he systematically pinned you to the wall.
To make things worse, the whole procedure was videotaped, and you were later required to review the videotape with the professor. One of his purposes was obviously to get us used to responding on our feet while under pressure--as I am now. While reviewing the videotape, the professor would critique our posture, gestures, and facial expressions, saying such things as "Look, you licked your lips. What did you do that for?" "What is your hand doing in your pocket?" "Why are you grimacing? You look like a scared rabbit." One day, in the first week or two of law school, the professor asked a question based on a substantial reading assignment. He asked about the six elements of the common definition of burglary, which is the breaking and entering of the dwelling of another at night time with the intent to commit a felony. He then asked for the common law definition of "night time," and no one he called on knew the answer. He glared at us and growled," Didn't anyone read the footnotes?" The answer was given in one little, obscure footnote in one of the many cases that made up the previous night's reading assignment. Fortunately, I had read the footnotes; unfortunately, I raised my hand. I was so dumb I didn't know you didn't raise your hand in Mr. Dean's criminal law class. With obvious pleasure the professor said, "Mr. Gardner, stand up." That's the way he sounded when he was about to eat a first-year student. Well I stood up, and he said, "What is the definition of night time?" I replied with the definition given in the footnote, "The time between sunset and sunrise when it is too dark to recognize a man's face." The professor then moved in to pin me to the wall. He said, "Mr. Gardner, what if there is a full moon and it is a clear night so that you can easily recognize a man's face a block away?" Without really thinking, I replied, "Mr. Dean, I'm blind. It doesn't matter how bright the moon is; I could never see a man a block away, never mind recognize him." The whole class burst out laughing. The professor, with a chuckle in his voice, said, "Okay, Mr. Gardner, sit down. I can tell when I have been beaten."
Despite the fact or maybe because of the fact that I had inadvertently won the first round, I was given many opportunities along with my peers to engage in mental jousting with my criminal law professor. Although no one has ever explained to me what it means to think like a lawyer, I believe it means that, when faced with a situation, and keeping in mind the laws he has learned, a lawyer should look at the matter from all possible angles, creatively brainstorm and identify all of the positives and negatives that could conceivably result from the situation, then carefully analyze, critique, and evaluate each of the positives and negatives identified, throwing out those without any merit. The remaining pros and cons are then carefully reviewed and analyzed so that ways can be found to minimize the minuses and capitalize on the pluses. Now I recognize that this is probably an overly simplified explanation of what it is to think like a lawyer. However, that is what I do daily for APS in a variety of areas.
For example, I handle the legal real estate matters for the utility company. Since APS is the largest property tax payer in Arizona, it is safe to say the company has its share of real estate issues. Nearly every day I handle power line easement and right-of-way matters such as how and where the utility company should build its power lines in light of concerns that electromagnetic fields (EMS), which emanate from power lines, might cause adverse health effects.
Additionally, I handle the legal aspects of buying and selling real property. For example, when the company outgrew its corporate headquarters building and it was decided that for political reasons it should lease rather than own new office space, I negotiated all of the legal aspects of the construction and lease of our new twenty-story corporate headquarters building. I drafted and negotiated the multi-million-dollar contract for the sale of the old office building.
However, real property issues are only a small part of what I handle for the company. I also oversee all of the numerous tort and commercial litigation cases. It is my job to select the litigators who will try the cases for the company, and I oversee their actions to assure that sound legal analysis and advice are being provided. This means that I must carefully analyze the strengths and weaknesses of the company's position in each case as well as evaluate the legal skills of the litigators I have retained. There are many millions of dollars at issue in each of these cases.
As the coordinator of litigation cases, I also direct the legal investigation of accidental electrocutions and other serious accidents which could result in lawsuits being filed against the utility company. Additionally, I handle a substantial number of miscellaneous matters, such as the legal aspects of selling electricity in Mexico. It has been my job to guide the company through the legal administrative and bureaucratic mazes required to obtain the Presidential permits, licenses, and other authorizations necessary to construct power lines across the international border into Mexico. Many approvals are required from numerous federal, state, and local governmental agencies in addition to the International Boundary Commission and the Mexican government. As a result of these efforts, last year APS became the first United States company to sell electricity directly to a retail customer in Mexico. I both drafted and negotiated that contract.
It is company policy at APS that no major decision is to be made without the benefit of legal analysis and advice. Consequently, on a daily basis I receive a variety of e-mail messages and telephone calls from numerous clients throughout the company explaining their situations and asking for advice. I outline their various options and explain the pros and cons and legal ramifications of each.
Although I feel rather uncomfortable speaking about myself, I have shared with you a glimpse of what I do for a living, not to be boastful, but to make a point. The fact is that my blindness is irrelevant to my clients. They come to me because I look at their problems and opportunities from all angles and can spot issues and can see solutions. They come to me because I think like a lawyer.
However, and this is the point I wish to make, I simply would not be as successful if I did not also think like a Federationist. In fact, I doubt that I would have gone to law school if I had not first learned the truth about blindness and begun overcoming the low self-esteem and low expectations I developed as a blind child. Until I learned the truth about blindness from the National Federation of the Blind, all I knew about blindness was what I had absorbed from society. Unfortunately, society's notion of blindness is one of helplessness and dependence. Blind people are generally thought of as not being capable of doing much of anything. Therefore, although my parents were as positive and optimistic as they could be under the circumstances, growing up I had low self-esteem and low expectations.
I remember going to the eye doctor as a child and hearing him tell my parents that, because my blindness was probably hereditary, they should make sure that I never got married or had children. I recall my mother sobbing and feeling that it was somehow her fault that I was blind. The clear message I absorbed from the doctor was that blindness was a terrible tragedy and that it would be better not to be born than to be born blind. The cartoon show Mr. Magoo helped to create and expand the shame and low self-esteem I felt inside. I refused to admit that I was blind because blindness meant helplessness. Blind people were bumbling, fumbling, Mr. Magoos, or worse, helpless dependents who sold pencils on the street corner. Blind people were inferior, dependent, and helpless folks to be pitied and cared for. Therefore, I tried to deny my blindness because I could see light and dark, general shapes, and movement with my peripheral vision. But the feelings of inferiority and shame would not go away. And of course I did not use any of the useful alternative techniques of blindness such as Braille and cane travel. To do so would have been to admit that I was blind.
In high school I signed up for AP English. I was in all respects qualified for the advanced course; however, the teacher told me that I could not take the class because I was blind. She told me that there would be too much reading and that I wouldn't be able to keep up. She said that because of my blindness I should take the minimum of English classes. Of course she knew nothing about talking books and other alternative techniques used by the blind. This well-intentioned but uninformed teacher was so convinced and my self-esteem and expectation were so low that I followed her advice and took the bare minimum of English classes in both high school and college.
It was not until I was in law school that I realized what a mistake I had made in listening to her. She didn't have any idea what too much reading was because she had never been to law school and tried to keep up with the reading requirements there. I realized that I should have at least minored in English to help me in the practice of law. In fact, I still feel that I am playing catch-up on the English classes I should have taken. For example, to this day I have a propensity to inadvertently split my infinitives.
Fortunately, in college the National Federation of the Blind found me, taught me the truth about blindness, and helped me overcome my low self-esteem and low expectations. The NFB helped me develop the confidence I needed to go to law school. Thanks to Dr. Kenneth Jernigan and the National Federation of the Blind, I have come to learn the truth about blindness, which is that the real problem is not the lack of eyesight but rather the public's lack of insight regarding blindness. In other words, it's not a physical disability but a social handicap, society's attitude, that is the real problem.
It was Henry Ford who said, "If you think you can or you can't, you're right." Given opportunity and training, a blind person can find alternative techniques for doing just about anything he would have done with eyesight and therefore be successful doing whatever he decides to do. For me that means practicing law. I am paid to think like a lawyer, but regardless of how we earn our daily bread, it pays to think like a Federationist. For this reason I will do everything in my power to share Federation philosophy with others so that they too can benefit from knowing and living the truth about blindness.